New laws keeping attorneys busy in 2009

Insurance companies, health care facilities and businesses of all sizes and industries will be forced to change some of their practices thanks to new laws that go into effect in 2009.

And Long Island lawyers expect even more changes to come throughout the year as campaign proposals by President-elect Barack Obama become law.

According to Frank Scahill, managing partner of Westbury law firm Picciano & Scahill, one reverses a New York law that allowed insurance companies to deny coverage if the insured failed to give them timely notice of an accident or lawsuit.

The law goes into effect Jan. 19, Scahill said, and follows similar reversals in other states.

“Up until this time, if you failed to give timely notice of an accident or a lawsuit, the insurance carrier could disclaim coverage to you,” he said. “The burden of proof used to be on the injured party. Now it’s a shift in the law and the burden of proof is now on the insurance carrier.”

Scahill said insurance companies lobbied heavily against the law, which was supported by trial lawyers. The lawyers contended that insurance carriers were quick to disclaim coverage to insured clients based on a technicality.

“This is the biggest change for insurance carriers,” Scahill said.

Other businesses will be seeing bigger changes, namely an expansion of the New York State WARN Act, which states that businesses with 50 or more employees must give 90 days’ notice in the event of mass layoffs or a closing, said Jim O’Brien, labor and employment partner with Nixon Peabody, which has offices in Jericho.

“Even though this law goes into effect on Feb. 1, if you are planning a plant closing or a mass layoff before Feb. 1 but the notice period carries past Feb. 1, the new law applies,” O’Brien said.

In addition, also on Feb. 1 companies must abide by a new state law that says employers cannot exclude a job candidate based on a prior criminal conviction unless it is directly related to the job or a threat to public safety.

The law states that employers are required to post the law in the workplace and must provide job applicants with a copy of the law if they are denied the job.

“That is one thing that is under the radar,” said Jeff Schlossberg, a partner at Ruskin Moscou Faltischek in Uniondale.

He added that there are also changes to the Family and Medical Leave Act regarding military service. The changes, which go into effect Jan. 16, state that an employee can take leave to care for certain family members who get injured in service. In addition, employees can take leave to help deal with other family members who are called to service through National Guard reserves or state militias. The employee can take leave to help make family arrangements, the law states, Schlossberg said.

“There are certainly a lot of employment law changes,” Schlossberg said. “Between the federal, state and local government, there are laws that go into effect that require changes to manuals.”

John Bauer, a shareholder with Littler Mendelson in Melville, said there are amendments to the American’s with Disabilities Act that went into effect Jan. 1.

The changes are intended to overturn several Supreme Court rulings that restricted the definition of disability.

“If someone had taken corrective measures to ameliorate the effects of their disability, the Supreme Court held them not disabled anymore,” Bauer said.

For instance, if someone used a hearing aid for a hearing impairment or took medication for a debilitating, severe high blood pressure problem, the Court found them not disabled, he said.

He said the changes affect businesses because they broaden the definition of disability and would consider more people to be disabled.

Brian Conneely, a partner at Uniondale’s Rivkin Radler, said the Genetic Information Nondiscrimination Act goes into effect in November. That law bars genetic discrimination, stating that a company cannot request information on a job applicant’s genetic background or disqualify a person from being hired because they are susceptible to getting some type of disease.

He added that in July a new law goes into effect severely restricting overtime for nurses.

“Health care employers cannot require mandatory overtime unless in certain circumstances, such as an emergency or in the middle of a procedure,” he said.

In addition to all those laws, and others governing estate tax exemptions, the Medicaid look-back period and gift tax exclusions that go into effect in the New Year, labor and employment lawyers throughout the country are keeping their eyes on Obama for any new laws that could be passed.

Specifically, they are watching the progress of the Employee Free Choice Act, which would make it easier for workers to unionize.

Obama supported the act while he was a senator in Congress and he has stated it is something he will try to get passed as president. The act states that instead of requiring two votes before creating a union, only one would be necessary. It also potentially reduces the amount of bargaining time required before binding arbitration is used.

“It’s going to be battled out in Congress,” Bauer said. “The feeling is that some type of law will get passed.”

One comment

I am a strong conservative, however when it come to our American Insurance Companies I believe they are the 5th column of the Mafia, and especially NY State is their Bruno’s! (For those of you that do not know, a Bruno is the Enforcing Thug). Has anyone ever analyzed how much of any coverage principally Health is going to the Pencil Pushers, CEO’s, Shareholders and let’s not us forget the Lawyers, instead of the Doctors, Pharmaceutical Companies. Labs, Medical Scientists, etc.!
Insurance Cost is a self imposed Tax but when it is mandated by the Bruno’s we are back to Socio-Fascism which NY is a Devout to.
p.s. I am Italian and I know the Mafia…not much different from the Insurance Companies